Legal Issues

by Timothy Geigner


Filed Under:
class action, lawyers, linux, ps3



Judge Nixes PS3 Linux Class Action Settlement As Class's Lawyers Victimize The Class A Second Time

from the class-dismissed dept

We've made the point for several years now that the way class action lawsuits are handled in America is flawed in fundemental ways. What was supposed to be a method for enabling large groups of the aggrieved to pool resources against much larger and better-funded entities has instead devolved into a procedure that appears almost perfectly designed to enrich unscrupulous lawyers while the class itself gets a laughable percentage any monetary damages.

We get to see these flaws in practice yet again, this time in an update for the story that simply will not die: the legal action over Sony removing the PS3's ability to run Linux, which it advertised when the console launched. The class action suit had reached a proposed settlement, only to have the presiding judge nix it, essentially over concerns that the class was being victimized all over again, this time by its own lawyers.

The California judge presiding over the litigation is now killing the proposed settlement amid concerns the lawyers representing the class haven't explained why they should get $2.25 million for their legal services, especially considering that the deal has made it burdensome on gamers to get their cash. Of the gamers who tried to get their $55 refund, 25 percent have been rejected.

"The Court has concerns, based upon how the notice and claims process preceded, the results it produced, and the disproportionality of the attorneys’ fees versus the class recovery, that the settlement agreement is not fair, reasonable, and adequate."

Judge Yvonne Gonzalez separates her concerns into two categories: the cut taken by the class's lawyers and the burden on the class in attempting to collect on the settlement. For the question about the lawyers' fees, the numbers are pretty ridiculous. The maximum the class would be compensated under the settlement would be just over $600,000. For this award, the class's lawyers would be compensated $2.25 million. In submitting the settlement to the court, there was apparently no attempt to justify this fee, which is perhaps because any justification would be difficult to formulate for a case that the court notes never got further than discovery and a grand total of two motions before the court.

This lack of evidence is all the more concerning in light of the fact that the litigation here never progressed beyond a motion to dismiss and an appeal of that motion. While some discovery was apparently conducted, that discovery does not nearly approach the level that would have been required to take the case to class certification, or beyond. Without billing records or some more detailed explanation of the basis for the fee request, the Court is without sufficient information to determine whether the request is reasonable.

And then there are the hoops members of the class would have to jump through should they attempt to collect. The same lawyers happy to take four-times the money as the entire class had apparently agreed to settlement conditions including the following:

Here are some of the hoops that were required for both groups to get the refund: proof of purchase, a console serial number, and the Playstation Network Sign-in ID used with the Fat PS3 between November 1, 2006 and April 1, 2010. Class A members were also required to prove use of the Other OS functionality and a statement under the penalty of perjury that the Linux operating system was installed and used. Consumer Class B members had to provide a statement under the penalty of perjury that they knew about the Other OS functionality and relied upon the Other OS functionality in making the decision to purchase a Fat PS3, "and intended at the time of your purchase to use the Other OS functionality." There were also other hurdles, including forcing gamers to obtain a "temporary ID" from the settlement administrator that Sony would use to check against its own records to verify purchase of a Fat PS3.

So, claimants would have to provide all kinds of proof of all kinds of everything in order to collect on the settlement...and obtain a temporary ID so that Sony could verify much of that same information in its own records. If that seems like the settlement was designed to throw up as many annoying barriers as possible to collecting the maximum $55 per claim, it's likely because that's exactly what occurred. The court notes that this kind of circular runaround is likely to discourage claims.

Class action lawsuits: great in theory, brutally corrupt in practice. It's nice to see a court recognize this and look out for the public to keep them from being victimized all over again.


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  • icon
    zerosaves (profile), 10 Feb 2017 @ 2:14pm

    Is there any reason that fee's can not be capped at a fixed % of the settlement? For any case. Period.

    This is insane, 600k vs 2.2 mill. I like how she pointed out how it was barely even a case, motion to dismiss and appeal only. laughable.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 10 Feb 2017 @ 3:33pm

      Re:

      Well, the class action lawyers might have something to say about that. Also, many legislators are also lawyers and likely feel some kinship with their brethren.

      That said, the only reason I see that they shouldn't be paid some hourly rate, for work done, is that they have a tendency to ask for it up front.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Feb 2017 @ 7:13pm

      Re:

      Is there any reason that fee's can not be capped at a fixed % of the settlement?

      Better yet, a percentage of the funds paid out. If the lawyers got nothing except 10% of every check cashed by a customer, they'd do everything they could to make those checks as large and numerous as possible. Every PS3 owner would be sick of the ads by now.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Feb 2017 @ 2:51pm

    It's Worse Than That

    The hurdles mean that almost none of the class members will get anything. we are talking about people who foolishly decided that buying a PS3 to run Linux was a good idea. How many of them are there really? The $600k to the class, is a gross over-estimate.

    If you want to run Linux, buy a standard Windows-compatible PC. Everybody knows that. Standard PCs are available second hand for ridiculously cheap prices.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Feb 2017 @ 3:23pm

      Re: It's Worse Than That

      Some of us wanted to run Linux on it because we could. (I also had a spare PS/3 after upgrading.

      I did not apply for the "refund" because it was too much of a pain just to file for it. It was made to be difficult.

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 11 Feb 2017 @ 1:01pm

        Re: Re: It's Worse Than That

        I figured it would be popular for college students. They got a game machine, a Blu-ray player, and an actual computer all in one at a super-low price. I indeed installed linux on mine, but I couldn't apply for the settlement if I wanted. Let's look at the requirements...

        "Here are some of the hoops that were required for both groups to get the refund: proof of purchase,"

        Right off the bat - no go. Who in the WORLD would STILL have a receipt after all these years?? An anal-retentive pack-rat with OCD?

        "a console serial number,"

        About the only hoop I can jump through. :)

        "and the Playstation Network Sign-in ID used with the Fat PS3 between November 1, 2006 and April 1, 2010."

        I never bothered to join the PS Network. I paid a premium for damn-slow DSL at the time, and the of downloading ANYTHING for the PS3 across it was laughable. I used my computer to get the 2009 version of Xubuntu to run on it, along with a few apps.

        "Class A members were also required to prove use of the Other OS functionality"

        And how does ANYONE do THIS???? I've still got the linux discs I used with my PS3, but how do I PROVE I actually used it?

        "and a statement under the penalty of perjury that the Linux operating system was installed and used."

        I suppose this is a hoop I could jump through, but I wouldn't without that proof from the previous step. Without PROOF I used it, this hoop means they'd have a fairly easy time convicting me of perjury, never-mind not getting the settlement.

        "Consumer Class B members had to provide a statement under the penalty of perjury that they knew about the Other OS functionality and relied upon the Other OS functionality in making the decision to purchase a Fat PS3, "and intended at the time of your purchase to use the Other OS functionality.""

        I could jump through this hoop, but without the receipt, there's no reason to.

        "There were also other hurdles, including forcing gamers to obtain a "temporary ID" from the settlement administrator that Sony would use to check against its own records to verify purchase of a Fat PS3."

        Record of what? They have my name from where? I paid cash in a WalMart for my PS3, and never even sent in the registration card.

        My case is probably the same as 99% of PS3 owners. This case was always about making some lawyers rich, not getting us justice for taking away a feature we used.

        reply to this | link to this | view in chronology ]

    • icon
      Ben (profile), 10 Feb 2017 @ 3:42pm

      Re: It's Worse Than That

      PS3's could be clustered together to form a home-brew supercomputer. The US Air Force even built one.

      But more to the point, it could dual-boot. Not only did you get a nice toy to play games on, but you could even use it to practice your linux-fu. They advertised that. And then they just took it away, probably because those who used it for linux weren't buying any games.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Feb 2017 @ 4:38pm

        Re: Re: It's Worse Than That

        Or they realized that anyone could buy and put together a supercomputer capable of doing calculations that help design nuclear weapons and the like.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 10 Feb 2017 @ 5:54pm

          Re: Re: Re: It's Worse Than That

          Or they realized that anyone could buy and put together a supercomputer capable of doing calculations that help design nuclear weapons and the like.

          Which is also why you can't run Linux on PC's.

          Oh, wait...

          reply to this | link to this | view in chronology ]

        • icon
          mauriceh (profile), 11 Feb 2017 @ 8:26am

          Re: Re: Re: It's Worse Than That

          You can ( and could) do exactly the same with any off the shelf PCs.
          A the time it came out, the only advantage the PS3 had was it was BOTH a game console and a PC.

          What killed it was Microsoft PAYING Sony to kill that funtionality.

          reply to this | link to this | view in chronology ]

    • identicon
      Christenson, 10 Feb 2017 @ 4:41pm

      Chump Change

      Were I a member of the class (I'm not), real relief would be my money (taken by false pretenses) AND the ability to boot whatever OS I wanted.

      Justice would be forcing Sony to allow all future Playstation-branded hardware to multi-boot, with a special master from the class certifying they had or had not in fact made that possible.

      This locking down of platforms is an underlying issue.

      reply to this | link to this | view in chronology ]

    • icon
      faceless (profile), 10 Feb 2017 @ 6:23pm

      Re: It's Worse Than That

      a standard Windows-compatible PC doesn't play PS3 games.

      before it was removed, the PS3 could play PS3 games *AND* run Linux.

      the hoops were definitely real though... the only reason i even had screenshots of PS3 Linux was i got MGS4 a week early and some people wanted to know how big the game was so i booted into Linux and opened the mounted disk and took screencaps.

      i had my serial number because i always took pictures of the serials and also typed them down and backed up the files.

      many many people would not be able to do either of those things in 2016.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Feb 2017 @ 7:18am

      Re: It's Worse Than That

      As far as linux on the PS3, mainly dev/hobbyist also were interested in the Cell architecture. It was an easy way to play with IBM's BladeCenter server QS series without spending major money. Given the power was a lot less, but as a test bed it was rather cheap alternative.

      Personally, I had already used the PS2 linux dev kit, so just being able to install linux without purchasing the HD/keyboard kit was a pleasant surprise. When they removed it for me at least, I was more upset on principal. 3 PS3 consoles later due to their shitty soldering, they ask for proof of a linux install was definitely a low blow.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Feb 2017 @ 9:51am

      Re: It's Worse Than That

      What is ridiculously is having to prove intent to use linux.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Feb 2017 @ 6:38am

      Re: It's Worse Than That

      Apparently, you didn't know the US military bought several of them with the expressed purpose of running Linux on them.

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 10 Feb 2017 @ 3:20pm

    Getting back at greedy lawyers

    I am going to recommend that we collect all lawyers pacemakers and gather a few cardiologists. Somehow I feel certain we can get them on something.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Feb 2017 @ 3:42pm

    >I am going to recommend that we collect all lawyers' pacemakers...

    Why? In this neck of the woods they say "a lawyer needs a pacemaker like a fish needs a USB port."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Feb 2017 @ 7:46pm

    Billing

    Had one attorney try to bill me $45,000 for a 15 minute time slice. I asked if he'd mind if I talked to the bar about it. He said I had pretty big ones for threatening him. I observed "It's not a threat. I passed the bar almost two decades before you did. We learned to never threaten in those days. Sometimes I make predictions. I'm never wrong."

    He got a funny look and took it off the bill. I don't know what bothered him. It was only simple fact.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 10 Feb 2017 @ 11:23pm

    Tis a pity there aren't more people organized about these lawyers ripping people off.

    Imagine if there was a 'FIHG' (Fanatical Internet Hate Group) who took on class action lawyers. Exposing how they gobble up a majority of the cash, leaving the class members in the unenviable position of getting fscked by both sides. Once again its the human bias of if it didn't happen to me, it doesn't happen. A few people might have gotten a postcard saying tick here to get your payout, but it never discloses that the settlement fund is only 2% of the total amount paid out to the lawyers.

    On the upside there are lawyers out there making a living off of threatening to object & screw up the settlements unless their 'client' gets paid off....

    Makes you wonder why it seems so many of those connected to the law seem to have the least respect for it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Feb 2017 @ 9:57am

      Re:

      "Makes you wonder why it seems so many of those connected to the law seem to have the least respect for it."

      no doubt!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Feb 2017 @ 10:45am

    Lawyers paid by Sony to reach a 'settlement' that were actually working FOR Sony in secret.....to minimize potential damage.


    Hey, we'll admit guilt, you get the lions share of this 3 million and we'll call it quits....

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2017 @ 7:53am

    The ONLY winners of a Class Action are the lawyers!!!

    reply to this | link to this | view in chronology ]

  • icon
    John (profile), 29 Jun 2017 @ 10:42am

    Fawking lawyers

    If those g'damn lawyers don't hurry up and propose that they get $600,000 and the users get the $2.2m, I'm taking THEIR asses to court.


    Kudos to the judge in this case thouh.

    reply to this | link to this | view in chronology ]

  • icon
    Dr_sn0w (profile), 29 Jun 2017 @ 11:00am

    No, you have got it all wrong.

    This bastard:

    https://g.co/kgs/Zsygbs

    hacked the linux side so that it would play copied/pirated ps3 games for free. Sony updated the firmware removing linux altogether to prevent that possibility and then promptly sued the hell outta him. Rightfully so. New games required the new firmware version. I still have one of the old firmware versions if anybody wants to buy it...

    https://www.eff.org/deeplinks/2011/01/sony-v-hotz-sony-sends-dangerous-message

    So it is Hotz fault really, not Sony although they ultimately made thr decision.

    reply to this | link to this | view in chronology ]


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